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Tougher drunken driving law upheld

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By Laura A. Bischoff, Staff Writer Updated 4:09 AM Thursday, October 1, 2009

COLUMBUS — The Ohio Supreme Court rejected a challenge to the state’s drunk driving law, upholding a provision that says repeat offenders who refuse to take a breathalyzer test automatically get an extra 10 days in jail once they’re convicted.

The decision reversed a ruling by the 3rd District Court of Appeals.

The law says a repeat DUI offender convicted of a subsequent offense faces a minimum mandatory jail sentence of 20 days if they refused a chemical test when arrested.

In September 2006, a deputy sheriff stopped Corey Hoover, of Union County, who had a DUI conviction within the prior six years.

Hoover failed roadside sobriety tests, was arrested and asked to take a breathalyzer test, but he refused.

His attorney said the new provision in the law is unconstitutional because it imposes a more severe penalty on a defendant who refuses to consent to a warrantless search.

In the court’s majority opinion, Justice Judith Lanzinger said Ohio’s “implied consent” law has been upheld as constitutional and provides that motorists automatically are deemed to have given consent to tests to determine alcohol and drug use if arrested under DUI laws.

Lanzinger wrote: “Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”

He noted that the deputy stopped Hoover after he crossed the center line and he reeked of alcohol, failed sobriety tests and admitted he had been drinking.

In dissent, Justice Paul Pfeifer said earlier rulings upheld administrative penalties for refusing a breathalyzer test, but this law adds a criminal sanction

Pfeifer said the issue is whether the state can “force a consent to search through the coercive power of threatened jail time... Imposing criminal sanctions for failure to consent goes far beyond the state’s power ... to regulate the licensure of drivers.”

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